Concentration before the Supreme Court following the announcement of the June 2019 verdict that sentenced the five members of La Manada to 15 years in prison for allegedly continuing to rape. Kiko Huesca (EFE)
The Supreme Court will hear the first appeals from prosecutors in May against reduced sentences for sex offenders under the yes-is-yes law. For the first time, the Supreme Court will rule on these suspicions and sources from the Second Chamber (criminal law) consider it likely that some reductions previously decided by the regional courts will be reversed. The matter causes disagreements within the court, as there are judges defending a criterion similar to that of the prosecution – not to reduce the sentence, provided that the sentence imposed under the previous law remains within the range provided for this crime in the new norm — while others consider that this interpretation should be an exception because it contradicts the legal principle that obliges the offender to apply the most favorable criminal law retrospectively.
The Supreme Court has already ruled 30 times how to apply the Sexual Freedom Act and reduced sentences on at least a dozen. But all of these pronouncements were about judgments that were not yet final when the new standard came into force. These were judgments that had been appealed in cassation to the High Court, but as the law changed before the Supreme Court came to consider them, the judges had to make these appeals already taking into account the penalties laid down in the Act of the Sole decide Yes is yes.
The scenario now opening up is different because the Supreme Court already has appeals on the table — around a hundred according to prosecutors — against reviewing any final judgments passed by the provincial courts or the Supreme Courts as a result of the entry into force of the law only yes is yes. And although the Supreme Court pointed out in the first few sentences it had to rule on the new law that the sentence reductions were “mandatory” for both firm convictions and those that aren’t, it has in several its recent resolutions qualified this endorsement and has slipped that the arrival of resources in the last few sentences will require the establishment of a new criterion.
This was anticipated in a February 2 ruling that reduced the sentence the Navarre court had handed down on a man for unlawful imprisonment, sexual assault, ill-treatment and threatening his ex-partner from 16 to 14 years in prison . “We are in fact not dealing with a case of review of a final judgment, but with an appeal process in which our discretion is fully applicable when it comes to the individualization of the judgment in question,” says the judgment, whose Judge Ángel is Hurtado was the speaker. In later decisions, the court went further in this consideration: “We are not dealing with a case of reviewing final judgments, but with the direct application of the new law, since the new law entered into force until the appeal in cassation. Presumption in which we are not limited to the only presumption that the sentence imposed does not fall into the fork that the new norm entails, “says the court in a February 27 judgment with a presentation by Judge Andrés Palomo, in which the court assumes the criterion for final judgments defended by the public prosecutor’s office.
The court went one step further in another judgment signed on the same day, reducing the sentence of the attacker of a woman in Valencia from 13 to 10 years in prison because the new law was more favorable. In that resolution, for which Judge Miguel Colmenero spoke, the Chamber notes that the yes is yes law lacks a transitional provision, similar to that included in the 1995 Criminal Code reform, that sets out what Final Judgments are like to check. “Leaving aside the doctrinal controversy about the possibility of direct application of these norms, specifically aimed at the application of Organic Law 10/1995, to the application of other subsequent norms, it is possible to focus on the criteria contained therein, which are used below repeated amendments to the Penal Code itself”, emphasizes the room, which adds: “From this criterion (…) it follows, first of all, that in order to determine the most favorable provision, it is necessary to establish the corresponding penalty the fact that with the application of the full norms of the any code (or law if understood more generally). In addition, when reviewing final judgments, the exhaustive provision that is not most favorable through the exercise of judicial discretion is applied and that in the same cases in the case of imprisonment, the new more favorable law is not taken into account if the duration of the imposed sentence of the offense with its circumstances also after the new law is to be taxed”.
This is the criterion that the prosecution also defends for the only yes-is-yes law, which considers that the fact that the new norm does not contain transitional provisions containing this rule “in no way eliminates the possibility of application of this criterion changes”. The prosecutor’s circular includes several Supreme Court rulings ruling that in the absence of a transitional provision in a penal reform, that contained in the previous reform may be used.
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strict application
The Trial Chamber has already scheduled in May to consider the first two appeals from prosecutors to reduce sentences to final sentences, and sources in the chamber concede that there are disagreements among judges, so debate over the setting of criteria is likely to be intense. . There is a section of the Supreme Court that, in line with the State Department, maintains that the 1995 Interim Provision must be strictly applied, which would mean that many of the sentence reductions issued by the higher courts and hearings would have to be overturned. On the other hand, another sector considers that this criterion cannot be applied since the penalty imposed under the old penal code can be imposed under the new one but may not be proportionate. “Arithmetic taxation is one thing, statutory taxation is another,” say circles in the room.
The judges, who disagree with the prosecution, also believe that the transitional provision cannot be applied in this way because it constitutes a “repeal” of Article 2(2) of the Criminal Code, which means that the law’s retroactive effect on the prisoners is cheaper. This transitional provision was justified at the time because the Penal Code had been almost completely amended, requiring the review of hundreds of thousands of cases, which is why it was decided to create an exception to facilitate the prosecution work of the judges. But this sector defends that a rule that harms prisoners cannot be enacted now unless lawmakers left it that way in the new law. This interpretation, the sources say, also does not imply that the Supreme Court will reduce all sentences that can be reduced with the new law, but that the sentence must be determined individually in each case in order to decide whether the reduction is confirmed or is revoked.
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